Counsel: pursuers win sanction in two cases

Arguably, motions for sanction for the employment of counsel have become more significant following the increase in the sheriff court’s privative jurisdiction, and the Sheriff Appeal Court has considered this issue in a couple of cases.

In Cumming v SSE plc [2017] SAC (Civ) 17; 2017 Rep LR 82, a sheriff’s decision to grant the pursuer’s motion for sanction was appealed. The defenders argued that, in considering the factors set out in s 108 of the Courts Reform (Scotland) Act 2014, the sheriff had erred in finding that it was reasonable to grant sanction due to the difficulty or complexity of the proceedings and their particular importance to the pursuer. The Appeal Court refused the appeal and provided some helpful guidance on motions for sanction. The approach taken in J's Parent and Guardian v M & D’s Leisure 2016 SLT (Sh Ct) 185, that “the test is one of objective reasonableness considered at the time of the motion”, was specifically approved (para [13]). The Appeal Court concluded that the sheriff had identified the correct test and considered the relevant factors. The decision was one within her discretion and, unless this was “plainly wrong”, the Appeal Court should be slow to interfere.

In Brown v Aviva Insurance Ltd [2017] SAC (Civ) 34 (25 October 2017) an appeal sheriff sitting alone considered the pursuer’s appeal against a decision to refuse to grant sanction. Although the appeal was uncontested, the appeal sheriff agreed to make a determination, recognising the significance of this issue generally. He concluded that the sheriff had fallen into error in relation to the issue of importance to the pursuer, as he had not given adequate weight to this as a relevant factor.